Schultz v. Schultz CA2/1

California Court of Appeal Apr 28, 2016 No. B263243Unpublished

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Holding. The court held that the trial court erred in denying the anti-SLAPP motion regarding paragraph 12 because the statements were protected litigation activity and subject to the absolute litigation privilege, but correctly denied the motion regarding paragraph 13 because those statements were not made in connection with litigation.

Issues

Whether the allegations in paragraph 12 of the cross-complaint constitute protected activity under the anti-SLAPP statute.
Whether the allegations in paragraph 13 of the cross-complaint constitute protected activity under the anti-SLAPP statute.
Whether the plaintiff demonstrated a probability of prevailing on the claims in paragraph 12 given the litigation privilege.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“The email constitutes statements made in connection with the ongoing litigation and is protected activity under section 425.16.”

“Erik’s statements in the email to the attorneys are absolutely privileged, which provides an impervious substantive defense to Marta’s causes of action for defamation and intentional infliction of emotional distress.”

“These purportedly false statements, made by Erik to his mother Juanita, were not in connection with the litigation and therefore paragraph 13 does not describe protected activity.”

Filed 4/28/16 Schultz v. Schultz CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MARTA SCHULTZ, B263243

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC496841) v.

ERIK SCHULTZ et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County, Mel Red Recana, Judge. Affirmed in part and reversed in part. Carlsen Law Corporation and Miles Carlsen for Defendants and Appellants. Southern California Law Group and Ross K. Reghabi and Ross Hoonanian for Plaintiff and Respondent. ——————————

Erik Shultz appeals from the trial court’s denial of his motion under Code of Civil Procedure section 425.161 to strike portions of the first amended cross-complaint of Marta Schultz. We affirm in part and reverse in part. BACKGROUND Erik and Marta Schultz are the adult children of Juanita Schultz.2 On December 5, 2012, when Juanita was 81, Eric filed a complaint against Marta for defamation and intentional infliction of emotional distress. Eric alleged that Marta made false statements about him to Juanita, including that Erik was stealing Juanita’s money, trying to give away or injure Juanita’s dogs, planning to kidnap Juanita from her home in Arizona, and that Erik had cut Marta out of Juanita’s will. On April 22, 2014, Marta filed a first amended cross-complaint against Erik, also for defamation and intentional infliction of emotional distress. Marta alleged that Erik made false statements about her in a December 10, 2012 email (the email) Erik sent to his attorney and to Juanita’s attorney, including that Marta was an elder abuser, was stealing money from Juanita, and was using “mentally abusive practices” to influence Juanita against Erik. The cross-complaint attached the email as an exhibit. Erik filed a motion to strike paragraphs 12 and 13 of Marta’s cross-complaint under section 425.16 on June 20, 2014. Erik asserted that the allegations in these paragraphs arose out of his statements in the email, which were absolutely privileged activity as statements to an attorney in the context of litigation. Paragraph 12 states: “During the period when Juanita exhibited dementia/Alzheimer’s symptoms, Erik falsely represented to Rudy S[tad]elman (Juanita’s personal attorney) and/or third parties that [Marta] is committing elder abuse and attempting to steal money from her mother.” Paragraph 13 states: “The fact remains that Marta was trying to protect the interest of her ailing mother, while Erik falsely represented, reissued, and reinforced to Juanita that

Schultz v. Schultz CA2/1

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MARTA SCHULTZ, B263243

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